Davies v Fay [1994] QSC 71 [1995] 1 Qd R 509

S:Gc:f¥/o..-,1 ...fA• State Reporting Bureau TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bu:-eau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION MACKENZIE J No 782 of 1990 JOHN MERVYN DAVIES Plaintiff and GEORGE ALEXANDRA FAY Defendant BRISBANE .. DATE 17/03/94 JUDGMENT 1 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 7 -- 170394 KHW (Mackenzie J) HIS HONOUR: In this matter, judgment is entered for the plaintiff for $620,000 with costs to be taxed. I publish my reasons. HIS HONOUR: I formally reserve the issue of costs. JUDGMENT 2 10 20 30 40 50 60 -- 2 of 7 -- .. ~· ,, A '\ d-(7.. lt;i l, Se 9tr/o '11 IN THE SUPREME COURT OF QUEENSLAND No. 782 of 1990 Brisbane Before Mr Justice Mackenzie [Re: Davies v. Fay] BETWEEN: JOHN MERVYN DAVIES Plaintiff AND: GEORGE ALEXANDER FAY ( Defendant "· REASONS FOR JUDGMENT -MACKENZIE J. Judgment delivered 25/03/1994 Counsel: J Kimmins for plaintiff C Newton for defendant Solicitors: Jan McCaughan for plaintiff Bradleys for defendant Hearing Date: 17 March 1994 -- 3 of 7 -- IN THE SUPREME COURT OF QUEENSLAND No. 782 of 1990 Brisbane Before Mr Justice Mackenzie [Re: Davies v. Fay] BETWEEN: JOHN MERVYN DAVIES ( Plaintiff AND: GEORGE ALEXANDER FAY ( Defendant ' REASONS FOR JUDGMENT -·MACKENZIE J. Judgment delivered 25/03/1994 After delivery of judgment in this matter an application was mad~ under 0.26 r.9 for costs on a solicitor and client basis. The circumstances were that the plaintiff offered to settle ~ .. quantum in the sum of $635,000 on or about 24 February, 1994. By a separate document bearing the same date an offer was made to settle the issue of liability by admitting five per cent contributory negligence. Although such an offer might not, in some circumstances, be properly considered as a bona fide offer, in this case the resolution of the issues of liability and contribution depended very much on the evidence that was accepted. The plaintiff contended for little or no contribution -- 4 of 7 -- 2 while the defendant claimed that the plaintiff was wholly or substantially to blame for the accident. What transpired after the offer was made is not in evidence but it is common ground that on 4 March, 1994 the defendant accepted the plaintiff's offer "to settle quantum as a separate issue at $620,000 inclusive of all heads of damages and any refunds". The letter went on to "confirm that this action will proceed on the 14th instant on the issue of liability alone". At the trial I found no contributory negligence on the part of the plaintiff. Mr Kimmins' application was that because his client had obtained judgment more favourable than-the offer of settlement he was entitled to costs on a solicitor and client basis. There iS little authority to be found on the point. In the 'case of a plaintiff, the operation of 0.26 r.9 depends on an offer to settle being made by the plaintiff which is not accepted by the defendant and the obtaining by the plaintiff of a judgment no less favourable than the offer to settle. If. these pre-conditions are satisfied the Court is obliged to order the defendant to pay the plaintiff's costs fixed on a solicitor and client basis unless the defendant shows that another 6rder for costs is proper in the circumstances. Order 26 r.2 provides that a party may serve on any other party an offer to settle "any one or more of the claims in a cause or matter" on the terms specified in the offer to settle. It is a natural reading of this provision that a claim that the plaintiff was guilty of contributory ne~ligence is a claim in the cause. ·In Henderson v. Simon Engineering (Aust) Pty Ltd (1988) V.R. 867 Murphy J. said the following of the Victorian rule:- ----·--------· --- -------· -- 0 (! () 0 0 -- 5 of 7 -- ( ' 3 "It has been submitted that r.26.02(1) clearly contemplates that an offer of compromise must specify a precise sum of money. I do not agree with this submission. If liability is an issue which the plaintiff must prove and contributory negligence has been raised, the proportions are most relevant .... If the issue of negligence and contributory negligence were issues, taking up a good deal of time (as in an industrial accident they so often are) it appears to me that r. 26.02 ( 1) provides a vehicle by which a defendant or a plaintiff may protect himself as to costs, for example, by offering to pay or to accept (as the case may be) a stated percentage of any damages that the tribunal may find that the plaintiff is entitled to receive and that should the offeree refuse such ari offer and be found more responsible by the tribunal, the offeror should be entitled to use an offer to compromise on this issue, served on the other party, on the issue of costs concerning that issue. 11 Admittedly this was a case where the primary question arose under the Victorian analogue of 0.26 r.10 but the obiter dicta apply equally to issues between the plaintiff and the defendant. I therefore conclude that the pre-conditions applicable to 0.26 r.9 have been satisfied. The qu~stion then is whether on the issue of liability an order other than an order for costs on a solicitor and client basis should be made. The onus lies on the defendant to establish that there should be some other order then for solicitor and client costs. In this particular case the offer to settle quantum and liability were made on the same day. To that point both aspects of the case were in issue. It was only after settlement of quantum on 4 March, 1994 that the question of contributory negligence became the sole live issue. In my opinion it is appropriate that any order for costs on a solicitor and client basis on the issue of liability should date only from that date in view of the fact that the final resolution of the matter depended heavily upon the acceptance of one view of the evidence over the other. -- 6 of 7 -- 4 Accordingly the order for costs is that the defendant is ordered to pay the plaintiff's costs of the action including any reserved costs, to be taxed, such costs on the issue of liability to be taxed on a solicitor and client basis after 25 February, 1994. ~- --------~---------------- -- ----~-~----~-- I • ~ ("'·). \....__..........-/ 0 0 OlI -- 7 of 7 --